(Reuters) – A U.S. appeals court in New York on Friday weighed arguments over whether Uber Technologies Inc [UBER.UL] customers gave up their right to sue the company when they registered for its popular taxi hailing service.

By Lisa Milam-Perez, J.D.

A federal district court properly rejected a challenge brought by two Illinois state workers hoping to bar their unions from collecting “fair share” fees from nonmembers. The Illinois Public Labor Relations Act allows for such fees and the First Amendment does too, according to the U.S. Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, which, for now, is still standing (Janus v. American Federation of State, County, and Municipal Employees, Council 31, March 21, 2017, Posner, R.).

Under the Illinois Public Labor Relations Act, a union representing public employees can collect “fair share” fees from public employees who are not union members but who benefit from the union’s bargaining efforts and its role in administering the contract. Illinois Governor Bruce Rauner filed suit in 2015 seeking to halt the practice, arguing that by allowing the union to levy these fees, the statute violates the First Amendment, in that it compels employees to provide financial support to an organization of which they disapprove.

The district court dismissed the governor’s complaint, concluding he lacked standing to sue. But two public employees had moved to intervene. Despite the procedural improprieties of allowing intervenors to join a defunct lawsuit, the district court granted their motion for expediency’s sake. Their ultimate goal: to overrule the Supreme Court’s Abood decision, which allows for public unions to collect fair-share fees.

“Of course, only the Supreme Court has the power, if it so chooses, to overrule Abood,” Judge Posner wrote, acknowledging, as the plaintiffs did, that the district court and appeals court were simply hurdles to clear before they could seek High Court review. The lower court’s dismissal, and the Seventh Circuit’s affirmance of that dismissal, were formalities.

One of the plaintiffs, however, had previously filed suit in state court on the same facts: that the Illinois law compels him to pay fees to a union that is obligated to bargain on his behalf. He obtained relief from a state appeals court, which in 2014 held that the Illinois Labor Relations Board abused its discretion when it dismissed his charges that his union failed to grant him a religious exclusion from the agency fee, as the state statute allows. The plaintiff did not assert a First Amendment claim in his earlier litigation, though—and he could have, since it was relevant to whether the Illinois Labor Relations Board acted unlawfully. Because the plaintiff already had a “full and fair opportunity” to have his challenge heard in court, his instant claim was properly dismissed on preclusion grounds.

By Kathleen Kapusta, J.D.

Observing that “at its heart, this lawsuit is about what happens when an employment policy based on an employer’s sincerely held religious belief conflicts with an employee’s rights under federal and state discrimination laws,” a federal district court in Oregon found a nonprofit Christian university discriminated against an unmarried pregnant employee when it fired her after she refused to marry her partner or stop living with him. Although the court granted summary judgment in her favor on her state-law marital status discrimination claim, it denied the parties’ cross motions for summary judgment on her state and federal gender and pregnancy bias claims (Richardson v. Northwest Christian University, March 16, 2017, Aiken, A.).

The university expected its faculty to adhere to “Biblical Christianity,” hired only Christian faculty, and expressly required them to integrate their faith into their jobs. When it hired the employee, the job description stated that the successful applicant would “provide a solid model of ethical leadership” and “contribute to the integration of faith and learning by addressing this issue in class and in curriculum.” As part of her application, she submitted a personal faith statement and expressed excitement about working with faculty “who demonstrate a maturing Christian faith, ethical leadership, [and] a strong moral compass[].”

Unmarried with children. At the time she was hired, she had two children but was not married. Four years later, she announced that she was pregnant. After confirming that she was unmarried, the university told her to stop living with the father of her child, marry him, or lose her job. When she refused the first two options, she was fired. In her termination letter, the Vice President for Academic Affairs wrote “Our focus is maintaining an institution which reflects its core values based upon the Christian faith. Those core values do not allow for the lifestyle which you have chosen and, based upon your letter, intend to continue. I have tried to be clear with you that sexual relations outside of marriage is contrary to the University’s core values. Despite your statements, it is known within the University, both to faculty and to students, that you are a single mother and your pregnancy would result in a very demonstrative violation of that core value.”

Ministerial exception. The university first argued that the ministerial exception required dismissal of the lawsuit, but the court disagreed. Applying the factors outlined in the Supreme Court’s Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC decision, the court noted that the employee’s title was secular, she did not undergo any specialized religious training before assuming her job, and while she held herself out as a Christian, there was no evidence she held herself out as a minister. Further, any religious functions she performed as a professor were secondary to her secular role, said the court, noting she did not perform any religious instruction and had no religious duties such as taking students to chapel or leading them in prayer.

Ecclesiastical abstention. Nor did the ecclesiastical abstention doctrine, which precludes courts from interfering “in the internal affairs” of religious organizations to “resolve religious controversies that incidentally affect civil rights,” apply as there was no need to pass judgment on questions of religious faith or doctrine in order to resolve the employee’s claims because they could be resolved by applying ordinary principles of employment law.

Pregnancy and sex discrimination. Turning to the employee’s sex and pregnancy discrimination claims, which were analyzed together, the court rejected her assertion that the university’s extramarital sex/cohabitation policy was facially discriminatory because it “treat[ s] pregnant unmarried women different from non-pregnant unmarried women.” The policy applied to all employees and did not expressly differentiate on the basis of a protected trait, said the court, noting that “at bottom, this case is about competing inferences regarding defendant’s motivation; that type of dispute is a poor fit for the facial discrimination framework.”

As to her intentional discrimination claim, the court observed that the university’s enforcement of its extramarital sex/cohabitation policy—when it learns through rumors or self-reporting that an employee is having extramarital sex/cohabitating and when it learns through rumor, self-reporting, or observation of pregnancy that an unmarried employee is pregnant—gives rise to a plausible inference of discriminatory intent because pregnancy is the basis of one of two enforcement categories and only women can get pregnant.

Pretext. And while the university identified its extramarital sex/cohabitation policy as the reason for the employee’s termination, a juror could infer that its chosen enforcement method would necessarily and obviously lead to disproportionate enforcement against pregnant women. Further, in the correspondence leading up to the employee’s termination, the university expressed concern that her pregnancy, once visible, would make it obvious that she, an unmarried woman, was sexually active.

Finally, the court observed, the university knew she was an unmarried mother when it hired her yet only asked about her compliance with its policy when she disclosed her pregnancy. Thus, said the court, a juror could conclude the university “was less concerned about its employees having sex outside of marriage and more concerned about people knowing its employees were having sex outside of marriage—a concern that arguably amounts to animus against pregnant women.” Because reasonable jurors could disagree regarding pretext, neither party was entitled to summary judgment on this claim.

Marital status discrimination. As to whether firing an employee for cohabitating constitutes marital status discrimination under Oregon law, the court observed that this was a question of first impression. While, the employee argued that her marital status drove the termination decision because she was prohibited from doing something—cohabitating with the father of her child—that she would not have been barred from doing had she been married, the university claimed she was fired because of her conduct, not her marital status.

Conduct vs. status. The court first found the Oregon statute at issue ambiguous and fairly susceptible to both parties’ interpretations. Further, a split in authority in other states regarding whether rules against extramarital sex or cohabitation are marital status discrimination supported the conclusion that the term “marital status” is ambiguous. Observing that the statute neither defines “marital status” nor addresses the validity of a distinction between conduct and status, the court turned to sexual orientation discrimination cases. While in that context, conduct (as expressed by who one marries and/or has sex with) and status are a near-perfect fit, in the marital status discrimination context, the relationship between conduct and status was not as clear because single and married people alike have sex outside of marriage and live with people who are not their spouses.

Nonetheless, the court found the sexual orientation discrimination cases “illuminating because they underscore that ‘[c]onduct and status are often inextricably linked.” Quoting Justice O’Connor in her concurrence in Lawrence v. Texas, the court wrote when “‘the conduct targeted by a law’ is ‘closely correlated’ with a protected status, ‘the law is targeted at more than conduct; it is instead directed toward’ the class of individuals who have the protected status.” Noting that even though both married and unmarried individuals may have sex outside of marriage, when single people have sex, it is always outside of marriage, the court found that the conduct/status correlation here was close enough that a policy against extramarital sex/cohabitation effectively discriminates on the basis of marital status.

Based on the absence of any evidence suggesting Oregon has a public policy of prohibiting sex outside of marriage, the close correlation between the conduct prohibited by the university and marital status, the questionable utility of a bright-line distinction between conduct and status in this context, and the canon of statutory construction governing remedial statutes, the court concluded that Oregon’s marital status discrimination law makes it illegal for an employer to impose a policy prohibiting extramarital sex or cohabitation.

And while the university argued that Oregon law expressly permits religious entities to prefer employees on the basis of shared religion, the court explained that although it could not be held liable for hiring only Christians, there was no accompanying exemption from a claim of marital status discrimination. Thus, the court found the university discriminated against the employee because of her marital status in violation of Oregon law.

By Ronald Miller, J.D.

An administrative law judge impermissibly ruled that employees were not entitled to have an opportunity to revoke their dues checkoff authorization at the expiration of a collective bargaining agreement, ruled the D.C. Circuit. Here, the appeals court found that the NLRB’s precedent in Frito-Lay, Inc., relied on by the ALJ, was factually distinguishable from the instant case; however, the Board affirmed the ALJ without considering the implications of that difference. Thus, Board impermissibly departed from its established precedent without giving a reasoned explanation. The appeals court pointed out that, on remand, insofar as the Board might seek to reinstate the same result in favor of the employer and union, it would need to explain how it could do so consistently with Frito-Lay and Atlanta Printing or justify any departure from those decisions. Judge Silberman filed a separate dissenting opinion (Stewart v. NLRB, March 21, 2017, Srinivasan, S.).

Dues checkoff. An employee’s authorization for her employer to checkoff union dues from her wages is not irrevocable. Section 302(c)(4) of the LMRA, specifies circumstances in which an employee must be afforded the opportunity to revoke a checkoff authorization. Further, CBAs establishing the availability of a checkoff arrangement for paying dues also set out how an employee can revoke an authorization. In particular, an employer must have received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable CBA, whichever occurs sooner.

The Board has long held that employers and unions engage in unfair labor practices if they checkoff union dues without an employee’s valid authorization. An employee has two distinct rights when he executes a checkoff authorization under a CBA: First, a “chance at least once a year to revoke his authorization” on the annual anniversary of his execution of the authorization; and second, a chance upon the termination of the CBA to revoke his authorization.

Revocation of authorization. Here, a retail grocer entered into a CBA with a union representing a unit of employees, and the agreement established the availability of a checkoff arrangement for paying dues. The agreement also prescribed the periods in which an employee’s authorization would be revocable. The authorization was irrevocable for a period of one year from the date of execution or until the termination of the agreement, whichever occurred sooner, and from year to year thereafter, unless written notice was given not less than 30 days and not more than 45 days prior to the end of the yearly period.

Between the expiration of the parties’ initial agreement on October 25, 2008, and the execution of the new one on November 12, 2009, a group of employees resigned from their union and sought to revoke their dues-checkoff authorizations. The union honored their resignations, but refused to give effect to their attempted revocation of their checkoff authorization. Accordingly, their employer continued to deduct union dues from the employees’ wages, and the union continued to accept the payments.

The employees initiated unfair labor practice charges against the employer. The NLRB General Counsel issued a complaint against the employer and union, contending that the continued deduction and transfer of union dues during the contract hiatus constituted an unfair labor practice. An administrative law judge dismissed the complaint in favor of the employer and the union, and the Board affirmed the ALJ’s rulings and adopted his recommended order.

Escape window. The employees challenge the Board’s decision on grounds that the Board’s precedent in Frito-Lay, Inc. could not be squared with the terms of Section 302(c)(4). Further, they argued that the Board should have treated their resignations from the union as requests to discontinue the checkoff of union dues at the earliest available opportunity.

The employees relied on Section 302(c)(4)’s directive that an employee’s checkoff authorization “shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.” According to the employees, the statute entitled them to revoke a checkoff authorization upon the expiration of the operative CBA, regardless of any language in a checkoff authorization purporting to require employees to seek revocation within a specified, pre-expiration escape window.

Contract expiration. In this case, the ALJ concluded that, although all employees had a 15-day revocation window connected to the yearly anniversary of their checkoff authorizations, they had no such revocation opportunity with regard to the bargaining agreement’s expiration. The ALJ twice explained that such an opportunity was confined to those employees who had signed an authorization in the contract’s last year. On that understanding, the facts in this case differed meaningfully from those in Frito-Lay, concluded the D.C. Circuit. Nothing in Frito-Lay purports to speak to a situation in which only those employees who sign authorizations in a contract’s final year are afforded a revocation opportunity tied to the contract’s expiration.

The Board summarily affirmed the ALJ’s decision. In doing so, it did not reject the ALJ’s understanding that the employees generally lacked any revocation window tied to the bargaining agreement’s expiration. Nor did the Board reject the ALJ’s treatment of this case as a routine application of Frito-Lay. Thus, the Board’s decision necessarily rested on the same flawed premise as the ALJ’s—that Frito-Lay directly controls this case. However, the Board’s treatment of this case as a routine application of Frito-Lay cannot be squared with the rationale of that decision. Accordingly, the appeals court “cannot uphold a decision where an agency departs from established precedent without a reasoned explanation.”

Dissent. Judge Silberman dissented from the court’s decision to remand the matter to the NLRB to resolve an ambiguity that he argued did not exist. Rather, he concluded that the Board’s interpretation of Section 302 was untenable. According to the dissent, the Board adopted an anti-textual interpretation of the phrase, “beyond the termination.” Essentially, the Board argued that if an employee’s authorization card conferred a window period in which to revoke authorization before the termination date and he or she does not revoke, he or she has forfeited the right after termination of the contract. This interpretation of Section 302 by the Board was flatly wrong, argued the dissent.

Employee engagement has declined across the world for the first time since 2012 due to global uncertainty, according to data from HR business Aon Hewitt.

Aon Hewitt analysed more than five million employees at more than 1,000 organizations around the world. The data showed that employee engagement dropped from 65% in 2015 to 63% in 2016. The latest data shows less than one quarter (24%) of employees are highly engaged and 39% are moderately engaged.

“The rise in populist movements like those in the US, the UK and other regions is creating angst within organisations as they anticipate the potential for a decrease in free labor flow,” Ken Oehler, Global Culture & Engagement Practice leader at Aon Hewitt, said. “Along with rapid advances in technology that are increasingly threatening job security, fewer employees are engaged and we expect this trend to continue.”

“As engagement falls, businesses can expect greater turnover, higher absenteeism and lower customer satisfaction—all factors that will significantly contribute to poor financial performance,” Oehler said.

Aon Hewitt research shows that a 5 point increase in employee engagement is linked to a 3 point increase in revenue growth in the subsequent year.

Aon Hewitt’s analysis found regional variations in engagement were driven by regional and country-specific economic, political and cultural differences.

According to Aon Hewitt, engagement for employees in Asia Pacific saw the biggest decline, dropping from 65% in 2015 to 62% in 2016. Rewards and recognition programs were ranked as a top opportunity to improve engagement by employees in Asia.

Latin America saw the largest increases in engagement, growing from 72% in 2015 to 75% in 2016. While not all countries in Latin America saw rising engagement levels, all countries remain above the global engagement rate. Mexico saw a 4% decline in engagement in 2016 while engagement for workers in Brazil rebounded eight points to 77% in 2016 after falling the previous year. Amidst the political and economic volatility and uncertainty in Venezuela, engagement was down 11 points to 69%. Latin America’s increase was followed by Africa which grew by 2%.

North America showed a 1% decrease in engagement, while Europe fell by 2%.

According to Aon, rewards and recognition ranked as the strongest engagement opportunity this year, an increase from ranking third in 2016.

“Leaders should understand that this actually reflects employees’ perceptions of fairness. While organisations may not be able to make sweeping changes to compensation, it is important that they take steps to address these sentiments” Oehler said.

Senior leadership strength and the degree of forward thinking decision-making was another top priority.

“The ability for leaders to have the personal sensitivity required to lead people and their organizations to growth is paramount in this intensely changing environment,” Oehler said.

A majority of Asian women leaders at multinational corporations feel trapped in regional roles, according to a new study by executive search firm Heidrick & Struggles.

The study, which gathered findings from 138 female senior Asian leaders in the APAC region, showed that 90% of Asian female senior leaders currently in regional roles in multinational companies with headquarters outside Asia aspire to be promoted to global roles. However, 36% are at least somewhat confident that they will be granted the opportunity. More than half, 54%, believe these barriers are a response to their ethnic background, while nearly half, 47%, feel that their gender is the main obstacle. Meanwhile, 85% are considering leaving their current companies in the next two years.

“Although there has been a focus on subjects such as women on boards and the development of the local female workforce, the research by Heidrick & Struggles reveals the difficulties of mid- to senior-level Asian female leaders who are limited to regional roles. This is the biggest glass ceiling issue that our successful female leaders are facing in this part of the world,” Alain Deniau, Partner of Heidrick & Struggles based in Hong Kong, said.

“Visionary corporations that recognise the increasing importance of Asia to their business are relocating their global headquarters to Asia,” Karen Choy-Xavier, Partner of Heidrick & Struggles said. “This move by a handful of companies serves as a great opportunity for Asian female leaders to take on global responsibilities without juggling time zone differences or perceptions that they are below average performers just because of the foreign accent they display during midnight conference calls. This requires a shift in mentality for headquarters leaders and must align with performance appraisal systems that indicate the path to global roles.”

Meanwhile, 43% of those polled are unwilling to take up global roles which would demand relocation, or participate in evening conference calls or other tasks that take away from time spent with their family. The study also showed that 19% feel that it is not culturally acceptable for women to be too ambitious, or that they would be regarded as culturally unfit by their colleagues at headquarters in terms of their communication styles. Moreover, 13% feel that it is their non-native English accent and lack of English language communication skills that hinder their progression while 48% agreed that a major barrier is that headquarters’ leaders do not pay enough attention to developing Asian women. However, 4% cited lack of capabilities and skill sets as a barrier.

“The firm’s study reminds leaders at headquarters to take notice of Asian women leaders as an untapped resource for global roles,” Steve Mullinjer, Regional Leader of Heidrick & Struggles, Asia Pacific, said. “As leadership advisors, we recognise the pressing imperatives for companies to hire and promote the brightest and those with high potential in order to stay competitive and outperform others, regardless of their nationalities, age groups, gender and cultural backgrounds. Senior management or headquarters need to embed such diversity of thinking in their organisations’ DNA to become truly diverse and inclusive organizations and drive better value to their stakeholders.”

The unemployment rate in Taiwan fell to 3.85% in February, down 0.1% from the previous year, according to data from the Directorate General of Budget Accounting & Statistics.

The number of unemployed persons was 453,000 in February 2017, which decreased by 9,000(-2.%) from the previous year.

Total employment in February 2017 was 11,307,000, which increased by 76,000 (+0.68%) from that of the previous year.

Taiwan’s labour force participation rate, which refers to number of people who are either employed or are actively looking for work, was 58.75% in February 2017, which increased by 0.09% from the previous year.

Raycom Engineering & Aerospace, a manufacturing company based in Singapore has been fined by the Ministry of Manpower for failing to pay salaries to five of its employees, reports the Straits Times. MOM fined Raycom SGD 17,500 (USD 12,500). All five affected local workers recovered their salaries, which amounting to approximately SGD 30,000 (USD 21,430) plus corresponding Central Provident Fund contributions. MOM has also banned the company from employing foreign workers.